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    Dolores Dorsainvil
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Noisy Withdrawals and Rule 1.6 (Confidentiality)

A client stands accused of a violent crime that has caught significant media attention. The case, a sensational one, has the lawyer at odds with his client and, to make matters worse, has provided for a difficult working relationship. The lawyer contemplates terminating the attorney-client relationship but is not certain how to do so.

Then he gets a great idea.  The lawyer will convene a press conference and announce to the several media outlets in attendance that he is parting ways with the accused.  At the press conference, the lawyer goes further, and ends up revealing some of the frustrating aspects of the representation.  The lawyer discloses that his client has gone “rogue,” that he had difficulty communicating with his client and, to illustrate that point, he shares the fact that the client has not returned his telephone calls, e-mail messages, or text messages in several days. The lawyer also states that although he believes in his client’s innocence, he is concerned about the client because he believes the client may suffer from mental health issues.

Harmless enough, right? Wrong.

Here is another scenario:  A lawyer realizes that she has been retained by what some may refer to as “the client from hell.”  In addition to being generally disagreeable, the client will not follow any of the lawyer’s advice or counsel and has taken to a course of action all on her own. To top off this frustrating relationship, the lawyer’s client has failed to pay the lawyer for a great amount of time spent providing legal services, including attendance at several court hearings. The client has not even acknowledged any of the past invoices billed on the legal matter, and has lied to the lawyer about paying the bill.  The lawyer decides that she will terminate the relationship and withdraw from the matter.

The lawyer files a motion to withdraw with the court and in it, she explains, in great detail, her reasons for the withdrawal.  The lawyer does this because she assumes that there is a greater likelihood that the court will grant the motion if the court understands the difficult circumstances which the lawyer faced representing “the client from hell.” The more information that the court has, the more likely that they will grant the relief sought.

Makes sense, right? Wrong.

A client may terminate the attorney-client relationship at any time for any reason. However, a lawyer may terminate the representation only for the reasons set forth in Rule 1.16(a) and 1.16(b) (Declining or Terminating Representation) of the Maryland Lawyers’ Rules of Professional Conduct.  When deciding whether a lawyer can safely withdraw from a representation, or to better understand the instances when a withdrawal from a representation is a mandatory duty placed on the lawyer or whether it is permissive, a lawyer should read this Rule as it delineates the proper procedure for withdrawing from a representation.  It is imperative for a lawyer who is contemplating ending a relationship, even an antagonistic one, to remember, to take care to protect the client’s interests.  If a lawyer chooses to end the relationship by way of either course of action described above, he or she has engaged in ethical misconduct.   Maryland Rule 1.16(b) states, in pertinent part, “…[a] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client . . . .”  The Rules prohibit a lawyer from painting a client in a negative light (even if the information is technically true) and/or revealing the intricacies of the attorney-client relationship as this could cause a material adverse effect on the client’s interests.  Further, this conduct may also violate Maryland Rule 1.6 (Confidentiality of Information) which prohibits a lawyer from disclosing a client’s confidence or secret. As you know, trust is the hallmark of an attorney-client relationship, therefore, in the example of calling for a press conference, the lawyer’s conduct is fraught with peril in that, by doing so, in addition to violating a client’s trust and confidence, negative attention could be brought to the client’s legal matter which may cause legal harm to the client.

The second scenario mentioned is what is referred to as a “noisy withdrawal” – the filing of a motion with a court that reveals a client’s confidence or secret.  Comment [3] to Maryland Rule 1.16 provides guidance to practitioners who may find themselves in an unenviable situation where they may have to file a motion to withdraw from a matter. A lawyer may cite “irreconcilable differences” between the lawyer and the client as the basis for the need to terminate the relationship.  If the court requires further explanation for the withdrawal, a lawyer should think about ways to ensure the that he/she keeps the client’s confidentiality as well as comply with the ethical Rules by either filing a motion under seal or requesting an in camera review.[1]

Determining whether or not to terminate a representation can be a very tough decision. But when faced with this tough decision,  a lawyer should always consult the Maryland Lawyers’ Rules of Professional Conduct because a lawyer’s duty to preserve the client’s interests and confidences continues even when the representation does not.  See also Maryland Rule 1.9 which discusses duties owed to former clients.

[1] When a matter is pending before a court, a lawyer must get the permission of the court as a prerequisite to withdraw. See Maryland Rule 1.16(c).

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